State v. Kenniston

Appleton, C. J.

This is a search and seizure process. It was directed to an officer, by whom a return was made, that he had entered “the within named premises and therein searched for intoxicating liquors and found and seized the following described liquors,” — stating them.

“The officer’s return,” remarks Peters, J., in State v. Howley, 65 Maine, 100, 101, “is a part of the allegations to be proved, but is no part of the proof itself. State v. Stevens, 47 Maine, 357. State v. Lang, 63 Maine, 215.” The allegations in the complaint, warrant and return are not established by reading the same. The truth of the facts alleged and asserted must be established by proof ab extra.

The evidence introduced shows that no search nor seizure was made by the officer by whom the return was made, he being absent at the time, but that the search was made by strangers to the process in the absence of the officer and not under his direction. The evidence completely negatives the truth of the officer’s return. The question then is can the truth of a return be established by an entire disproof of all the facts therein contained. We think not. The evidence was not admissible to contradict the return.

Exceptions sustained.

Dickerson, Barrows, Virgin, Peters and Libbey, JJ., concurred.